Evidence to House
of Lords Select Committee "F" on the Commission's proposals
to revise comitology procedures from Statewatch

Comitology is a vital part of the adoption and implementation
of Community law. Most EC acts, many of great importance, are
taken by the Commission under powers delegated by the Council,
and in such cases there is no formal involvement of the general
public, national parliaments or the European Parliament.

The proposed new Council decision (COM (1998) 380; OJ 1998,
C 279/5) would amend and replace the 1987 Comitology decision
(OJ 1987, L 197/33). This existing decision sets out standard
types of committees of national representatives which assist
the Commission in the exercise of powers conferred upon it by
the Council.

1) The present Decision

The three types of committees in the present Decision are:

a) advisory committees (procedure I), in which national representatives
can only comment on a proposed Commission decision;

b) management committees (procedure II), in which the representatives
may block a Commission proposal by taking a vote against (by
qualified majority), after which the Commission must propose
the measures to the Council, either deferring taking the final
decision by up to a month (procedure IIa) or up to three months
if the parent legislation provides for a longer period (procedure
IIb). In either case, the Council make take a different decision
by qualified majority within the time limit;

c) regulatory committees (procedure III), in which the Commission
needs the support of the representatives, by qualified majority,
to take the implementing decision; if that is not forthcoming,
the Commission must make a proposal to the Council; under procedure
IIIa, if the latter has either not acted within a specified period
no longer than three months, the Commission can adopt the proposed
measure itself, but under procedure IIIb, the Commission can
adopt the proposed measure unless the Council has decided against
it by simple majority.

Additionally, there is a standard procedure governing the
Commission when it takes safeguard decisions, usually against
imports of third-country products. Any Member State may refer
a proposed decision to the Council which may either (variant
(a)) take a different decision by qualified majority within a
time period to be specified, or (variant (b)) confirm, amend
or revoke the decision by qualified majority; failing any Council
action, the Commission measure is deemed revoked.

2) The proposed Decision

The new proposal follows up a declaration attached to the
final act of the Amsterdam Treaty, but Commission's Explanatory
Memorandum with the new proposal gives very little detail on
the reasons behind the substance of the proposal or on the operation
of the 1987 Decision.

The main differences between the proposed procedure and the
current procedure are as follows:

a) a new Article 2 would set out a system for classifying
which type of procedure should be used in which type of measure;

b) all the variants to the procedures have been deleted with
results as follows:

i) the safeguard procedure will leave it up to the Council
in each case to decide on the details with, in effect no
central principles set out in this Decision;

ii) the management procedure will still need a QMV vote by
Member State representatives to block a Commission proposal;
the Commission shall still then send the proposal to the Council,
which will still need QMV to take a different decision. The only
major changes/simplifications are to the time limits, where it
will be left to the Commission to set a time limit of up to three
months; and on the effect of a delay: the Commission may
defer application of any measure in the new proposal;

iii) the regulatory procedure would still allow Member State
representatives to block a proposal if there is QMV against or
if no opinion is delivered. The change/simplification happens
next: the Commission shall not adopt the proposed measure;
it may simply make a proposal [to the Council] in accordance
with the Treaty if its original proposal is blocked.

c) the proposed Article 7 provides that the EP will get committee
agendas and results of votes (seemingly for all committees) and
draft implementing measures where such measures would implement
an act adopted by the co-decision procedure.

d) Article 8 provides that the EP and Council should adjust
all existing comitology arrangements to match those
in the new Decision after a future proposal from

the Commission.

3) Institutional Implications

a) regulatory procedure

The proposed changes to the regulatory procedure appear to
favour the Council far more than either the current procedure
IIIa or IIIb, because the proposed system suggests that the proposal
will never be adopted without a QMV or possibly unanimity in
favour in the Council, compared to the current situation where
the Commission might end up adopting the proposal where either
the Council does not act or has not voted against by simple majority.
The Commission should explain why it believes such a change to
be necessary.

b) Amendment to existing comitology provisions

Potentially hundreds of existing legislative acts could be
affected by amendments to convert them to the new system and
to alter them, if need be, in accordance with the new classification.
The Commission should provide more detail about how it envisages
this process working, in particular on the extent of re-classification
which it envisages.

The Commission should clarify whether it intends to make only
one proposal which would have the effect of changing all the
pre-existing procedures at once. Such a "one-off" Decision
would be legally problematic since the legal bases for the parent
measures are different. The alternative approaches would be to
propose either separate amendments to each of the EC legislative
measures with comitology provisions, "flooding" the
EC legislative system, or (preferably) to propose two separate
consolidated amendments: one to the comitology provisions in
all existing pieces of parent legislation which must be amended
by the consultation procedure, and one to the comitology provisions
in all existing parent legislative acts which must be amended
by the co-decision procedure.

Presumably the proposal to adjust the pre-existing comitology
provisions will not be made until after the entry into force
of the Amsterdam Treaty, in which case there will be limited
need for a separate proposal amending the comitology provisions
in all parent legislation to be amended by the cooperation procedure,
and the list of parent legislation to be amended by the co-decision
procedure will be substantially increased.

Whatever approach is taken, the result will likely be that
some of the existing comitology arrangements will be altered
to different types of committee in accordance with the classifications
of the proposed Article 2. There is therefore a good chance,
based on previous experience, of a prolonged dispute between
the Council and Parliament on which category each proposal will
fall into. For this reason it would be highly preferable to have
a fuller definition of the categories in Article 2, or the preamble,
or at least a detailed explanation from the Commission of which
comitology provisions are likely to fall into which classification.

c) EP provisions

The EP's only remedy if it does not like a proposed implementing
measure which it receives a draft of is presumably to complain--or
to sue if an adopted measure alters the basic measure (see its
successful complaint in Parliament v. Council (pesticides) [1996]
ECR I- judgment). But it might also be arguable that a breach
of the procedure set out in Article 7 could lead to possible
annulment of the measure at the behest of any plaintiff, either
with standing to sue directly or on a reference from a national
court or tribunal.

Furthermore, it could be argued that the proposed Articles
7 and 8 together mean that the EP's expanded rights where co-decision
legislation is being implemented apply to all cases where the
parent legislation was adopted under the consultation or cooperation
procedures pre-Amsterdam, but would have been adopted under the
co-decision procedure had it been adopted post-Amsterdam. The
Commission should clarify whether it believes this to be the
case.

Finally, it is not specified when the information to be provided
to the European Parliament must be provided. In order for the
EP to conduct effective scrutiny of draft agendas and draft measures,
it should receive them well in advance. A period of six weeks
with exceptions for urgency seems appropriate, in line with the
provisions on national parliaments in the relevant Protocol to
the Amsterdam Treaty. Furthermore there should be a time limit
for the EP to receive the results of votes and it should be provided
that the Parliament receive minutes of meetings, in case decisions
are deferred or partly agreed or other important agreements are
reached besides a formal vote on a proposal.

4) Transparency

Article 7 does not make any provision for providing information
to national parliaments or the general public. This omission
is highly problematic because most Commission implementing decisions
will impose compliance costs on national administrations and
private business, and many are of great concern to interest groups,
non-governmental organizations, journalists, researchers and
other members of the general public. This is also true of Commission
implementation of spending decisions under the current third
pillar, where (for example) the Commission might have become
involved in funding detention camps in Turkey without UNHCR supervision,
as discussed by national and Turkish civil servants earlier this
year, apparently without informing the Home Secretary.

National parliaments should preferably be assimilated mutatis
mutandis to the European Parliament's rights in Article 7, but
transparency to the general public is presently the subject of
dispute before both the Court of First Instance and the European
Ombudsman. In these cases (T-188/97 Rothmans v. Commission, and
the complaint of Steve Peers, University of Essex, to the European
Ombudsman) the Commission is arguing that the documents of comitology
committees are not Commission documents, but documents
within the control of each committee. The Council, asked to comment
by the European Ombudsman, has argued that the documents are
not Council documents, but has avoided taking an explicit view
on whether the committees, the Member States or the Commission
has responsibility for them.

There is no formal way to contact the committees themselves
to ask for the documents. If the documents are treated as Member
State documents, there may be great difficulties obtaining these
documents from at least some Member States, especially if Member
States take the view that they are Commission or Council documents
or are reluctant to release the documents in light of their European
character.

This problem should be solved without waiting for the Court
of First Instance ruling, which will be some time in coming (the
Court has not even held a hearing in this case yet) and might
in any event be appealed to the Court of Justice. Article 7 clearly
provides that agendas, draft measures and votes should be provided
to the European Parliament, and page 2 of the explanatory memorandum
makes it clear that past agreements on the provision of information
to the Parliament have been between the Commission and the Parliament.
Since the Commission chairs the meetings, proposes all measures,
and takes all decisions (except where the national representatives
block a proposal), it is clearly the body most able to arrange
for the transparency of meetings. This is borne out by its decisions
to publish the decisions of the data protection advisory committee
on the DG XV web site and details on various consumer committees'
activities (following the BSE crisis) on the DG XXII web site.
A preambular clause in the Decision could make it clear that
this clarification of the Commission's responsibility is without
prejudice to the question of whether or not it is responsible
for materials from committees meeting before the entry into force
of the new Decision.

Within the third pillar, the Council's provisions on access
to documents apply mutatis mutandis to access to documents of
the Article 18 Committee of the Dublin Convention (see Rules
of Procedure, Committee Decision 2/97, OJ 1997, L 281) and the
CIS Management Committee (agreed Rules of Procedure of Management
Board, not yet published). There is therefore precedent for extending
the transparency rules of the Union institutions to a related
decision-making forum.

It would also be preferable to oblige the Commission to take
steps to make at least some of the relevant information available
on the Internet and the Official Journal in addition, of course,
to responding to written requests for access to documents.

5) Possible amendments

In light of the above comments, the Committee might like to
consider recommending the following two amendments:

a) second paragraph of Article 7 as follows:

The European Parliament and national parliaments
shall be informed of committee meetings on a regular basis. To
that end, they shall receive from the Commission
agendas for committee meetings and draft measures submitted to
the committees for the implementation of instruments adopted
by the procedure provided for by Article 189b of the EC Treaty,
at least six weeks before the relevant committee meeting,
except in duly substantiated cases of urgency.They
shall also receive from the Commission the results of voting
and the minutes of each meeting six weeks after each meeting
at the latest. They shall also be kept informed whenever
the Commission transmits to the Council measures or proposals
for measures to be taken.

The public shall have access to the documents referred
to in the preceding paragraph, by application to the Commission,
on the same basis that it has access to documents covered by
Commission Decision 94/90. The Commission undertakes to provide
the widest possible access to such documents, in particular by
dissemination on the Internet and publication of draft measures
in the Official Journal of the European Communities.

Revised paragraph 1 or new paragraph 3:

Each committee shall adopt its own Rules of Procedure on the
proposal of its chairman. These Rules shall provide that:

a) the public shall have access to the documents referred
to in the subsequent paragraph, by application to the Commission,
on the same basis that it has access to documents covered by
Commission Decision 94/90; and b) the committee shall undertake
to provide, with the assistance of the Commission, the widest
possible access to such documents, in particular by dissemination
on the Internet and publication of draft measures in the Official
Journal of the European Communities.

Statewatch, 4 October 1998

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